Following two days of turbulent protests over ICE raids in Los Angeles County, President Trump issued a memorandum on Saturday night purporting to authorize the federalization and deployment of the National Guard, as well as the deployment of active-duty-armed forces, “at locations where protests against [ICE] functions are occurring or are likely to occur based on current threat assessments and planned operations.” As explained herein, the memorandum represents an unprecedented, dangerous, and legally doubtful exercise of power—one that raises many of the same concerns as an Insurrection Act invocation would, and that could end up looking quite similar in practice.
1. What legal authorities did Trump invoke to authorize deployment of the military?
The use of federal forces (including federalized National Guard forces) to perform core civilian law enforcement functions is barred by the Posse Comitatus Act unless “expressly authorized by the Constitution or Act of Congress.” The statutory authorization for using federal troops to quell civil unrest is the Insurrection Act, the name given to an amalgamation of laws passed between 1792 and 1871. The Insurrection Act authorizes the president to deploy federal troops to quell domestic violence, insurrections, and rebellions against U.S. authority and to execute federal and civil rights laws when they are being obstructed.
Trump’s memorandum notably does not invoke the Insurrection Act. Instead, it cites 10 U.S.C. § 12406, a law enacted in 1903 that allows the president to call up the National Guard if there is “a rebellion or danger of a rebellion against the authority of the Government of the United States” or if “the President is unable with the regular forces to execute the laws of the United States.” Although the relationship between the Insurrection Act and 10 U.S.C. § 12406 is admittedly murky, presidents have essentially treated § 12406 as the technical call-up authority that accompanies the Insurrection Act’s substantive grant of power. They have thus consistently invoked the two authorities together when deploying federal troops to quell civil unrest.
Trump, however, has attempted to decouple these authorities. In federalizing and authorizing deployment of the National Guard, Trump appears to be either relying on § 12406 as a stand-alone authority or, alternatively, pairing § 12406 with a claimed inherent constitutional power to deploy troops to protect federal personnel, property, and functions (discussed further below). In authorizing deployment of active-duty armed forces, Trump is ostensibly relying solely on a claim of inherent constitutional power, given that § 12406—unlike the Insurrection Act—does not authorize deployment of active-duty armed forces.
It is unclear why Trump has chosen this approach, particularly in light of the enthusiasm he has shown for the Insurrection Act in the past. One possible explanation is that Americans are more familiar with the Insurrection Act and its potential for abuse; invoking it would have been sure to provoke an immediate firestorm of controversy. Section 12406 is far less well-known, and its complicated relationship to the Insurrection Act and the Posse Comitatus Act can be confusing.
2. What can (and can’t) the military do under these authorities?
If Trump is relying solely on § 12406 to authorize federalization and deployment of the National Guard, that could trigger a legal challenge. Whether § 12406 may serve as an independent deployment authority and a substantive grant of power, when it has almost always been treated simply as a statutory basis for shifting control over the Guard from the governor to the president, would be a question of first impression for the courts. So, too, would the question of whether § 12406 constitutes an exception to the Posse Comitatus Act—i.e., whether troops could perform core law enforcement functions, which the Posse Comitatus Act otherwise prohibits, or whether they would be limited to providing logistical support to civilian officers. (The complaint in Governor Newsom’s lawsuit does not challenge the use of § 12406 as a stand-alone authority but does allege Posse Comitatus Act violations.)
To the extent Trump is relying on a claim of inherent constitutional authority, different legal difficulties arise. Office of Legal Counsel memoranda have long taken the position that the president has an inherent constitutional power to use troops for the protection of federal property and federal functions, and that such use does not constitute law enforcement for purposes of the Posse Comitatus Act. Department of Defense policies similarly provide that military commanders may, without violating the Posse Comitatus Act, engage in “activities that are necessary to quell large-scale, unexpected civil disturbances … to protect Federal property or functions.” But this is largely an executive branch-created doctrine, and any attempt to use this theory to justify participation in core law enforcement activities would be subject to challenge.
In short, these authorities do not give Trump the same unambiguous authority to use troops for law enforcement that the Insurrection Act would. It’s not clear, however, how much difference that will make as a practical matter. For one thing, if courts interpreted these authorities as being significantly more constraining than the Insurrection Act, Trump could simply issue an Insurrection Act invocation. After all, his finding of a “rebellion” for purposes of triggering § 12406 could also be used to trigger the Insurrection Act.
Moreover, Trump has now deployed 300 National Guard members and a full battalion of 700 Marines into Los Angeles over the objection of state and local officials. Even if their role is framed as protecting federal property and functions, federal protection activities in other contexts (caveat: involving Title 32, not Title 10, operations) have included activities that the Department of Defense itself ordinarily considers impermissible “direct assistance” to civilian law enforcement, such as crowd control, temporary detention, and cursory searches. Given the increasingly turbulent nature of the Los Angeles protests in the wake of the National Guard deployment, Guard forces acting to insulate ICE’s activities against disruption will surely be exercising the kind of coercive control over civilians that would normally trigger the Posse Comitatus Act.
3. Can the president federalize the National Guard without state consent?
Under the Insurrection Act, the president may federalize National Guard forces without state consent in certain circumstances. A president can even send one state’s National Guard forces, once federalized, into another state over the latter state’s objection. That is because federalized National Guard forces temporarily become a part of the federal armed forces.
Under § 12406, things are a bit more complicated. As my colleague Joseph Nunn has written, section 12406 is a “troublingly ambiguous statute.” The first part of the law, enacted in 1903, appears to give the president unilateral authority to call the National Guard into federal service. The second part, however, which was added in a subsequent amendment, provides that “[o]rders for these purposes shall be issued through the governors of the States”—suggesting the need for state cooperation. Unfortunately, the legislative history sheds little light on why the second provision was added or what Congress believed should happen in a situation where a governor refused to transmit orders.
Within a year of the amendment, the potential conflict between the two provisions of § 12406 came into sharp relief. When President Eisenhower invoked the Insurrection Act to enforce school desegregation in Little Rock, Arkansas, he complied with § 12406 and requested that Governor Orville Faubus deliver the federalization order. When the governor refused, Eisenhower’s team simply went around him and had the order delivered through the Arkansas Guard’s Adjutant General.
The lawsuit filed by Governor Newsom on Monday alleges that the Department of Defense did not transmit the relevant orders through (or even to) the Governor’s office. The question of whether this end run around the process set forth in § 12406 passes legal muster—and how § 12406 operates in a situation where a governor does not consent to deployment—is now squarely before the courts.
4. When is it lawful and appropriate for a president to deploy the military to quell civil unrest?
The Insurrection Act and § 12406 are both written in broad terms that, on their face, give the president significant discretion to deploy troops to quell civil unrest or to enforce the law. Nonetheless, the Department of Justice has historically construed the Insurrection Act as being “limited … by the Constitution and by tradition,” despite the fact that some of its provisions “appear on their face to confer broad authority to use troops to enforce federal law generally.” More specifically, the Department has opined that presidents should invoke the law only as a “last resort,” in cases where (1) a state requests assistance to suppress an insurrection; (2) there is state defiance to a federal court order; or (3) “state and local law enforcement have completely broken down,” meaning that “state authorities are either directly involved, by acting or failing to act . . . or are so helpless in the face of private violence that the private activity has taken on the character of state action.” If § 12406 were deemed an independent substantive grant of power, the Constitution and tradition would presumably mandate the same limiting interpretation.
This high bar for domestic deployment recognizes the critical importance of limiting military participation in civilian law enforcement. The principle expressed in the Posse Comitatus Act has been a core feature of Anglo-American legal and political thought for centuries, dating back to the Magna Carta. As history has repeatedly shown, there is little that threatens individual liberty or facilitates tyranny more than the unchecked ability of a country’s leader to turn the military inward against the people.
There are also compelling practical reasons why the military should not serve as a domestic police force. Soldiers are trained to fight and destroy an enemy; most have little to no training in peacefully enforcing the law and deescalating conflict while respecting constitutional rights. Throwing them into a civil unrest scenario creates risks to civilians and soldiers alike. It also pulls them away from their core missions, including defending the country against threats from hostile foreign powers and—in the case of the National Guard—responding to natural disasters.
5. Is the deployment authorized by Trump’s memorandum lawful and appropriate?
Even if Trump were to deploy the military only to Los Angeles, the deployment would not meet the criteria previously articulated by the Department of Justice for using federal forces to quell civil unrest. State and local law enforcement have not “completely broken down”; the relevant police units are neither failing to act nor “helpless.” To the contrary, police have responded with rubber bullets, flash-bang grenades, and pepper spray. This is a far cry from the situation in 1957, when Arkansas police (and the Arkansas National Guard, for that matter) stood shoulder-to-shoulder with the white mobs who opposed court-ordered school desegregation.
More alarming, nothing in the memorandum limits deployment of the military to the city where protesters are now clashing with ICE officers. Indeed, the memorandum doesn’t even mention Los Angeles. It purports to authorize deployment to protect ICE and other federal personnel performing federal functions “at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.” In other words, federalized Guard forces could be sent anywhere in the country where protests against ICE are deemed likely. There is no requirement that the protest involve violence, vandalism, or any disruptive or illegal activity (raising First Amendment concerns along with concerns about use of the military). Indeed, the deployment may occur before any protest has even happened. On Sunday, Trump confirmed the intent behind the memorandum, promising that “we’re going to have troops everywhere.”
This is truly unprecedented. Preemptive nationwide deployment of the military is the very opposite of using the military as a “last resort.” It is so wildly out of keeping with how the Insurrection Act and 10 U.S.C. § 12406 have been interpreted and applied that it should be entitled to no deference by the courts. (As my colleague Katherine Ebright has discussed in the context of the Alien Enemies Act, even the “political question doctrine”—which normally precludes judicial review of certain executive actions—has exceptions for cases in which a president acts in bad faith, makes an obvious mistake, or acts in a way manifestly unauthorized by law.) And it should raise a bright red flag for anyone concerned with the future of American democracy.
